Farrell v. Board of Review

On appeal from a Final Decision of the Board of Review, Docket No. 207,533.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2010

Before Judges Cuff and Payne.

Claimant, Karyn Farrell, a substitute school teacher, appeals from a final decision of the Board of Review, dated April 17, 2009, reversing a determination of an Appeal Tribunal that she was eligible for unemployment benefits. The Board, applying N.J.S.A. 43:21-4(g)(1), determined that Farrell was ineligible for benefits from June 22, 2008 through September 6, 2008, the school vacation period, because she had reasonable assurance of her reemployment as a substitute teacher for the 2009-2010 school year; it required a refund of benefits received for the weeks ending July 5, 2008 through September 6, 2008 in the amount of $1,870 pursuant to N.J.S.A. 43:21-16(d); and it remanded to the Director the issue of Farrell's liability to refund benefits for the weeks ending June 21, 2008 and June 28, 2008.

I.

The record discloses that Farrell was employed as a substitute school teacher by various municipalities including Ridgewood, Ho-Ho-Kus, and Allendale during the previous two years. On July 1, 2007, Farrell had submitted a claim for unemployment benefits during the summer recess following her school employment by the Ho-Ho-Kus Board of Education. After denial of that claim by a deputy claims examiner, Farrell had appealed to an Appeal Tribunal, which had held Farrell eligible for benefits during the period from July 1, 2007 through September 1, 2007. No further appeal had been taken from that determination.

One year later, on June 29, 2008, Farrell filed a claim for unemployment benefits during the summer recess pursuant to her school employment by the Allendale Board of Education. On October 20, 2008, a deputy claims examiner found Farrell ineligible for benefits from June 29, 2008 through September 6, 2008 on the ground that she was employed by an educational institution and had a reasonable assurance of reemployment in the following school year, and she was thus disqualified for benefits pursuant to N.J.S.A. 43:21-4(g)(1). A request for a refund in the sum of $1,870 was made.

Farrell sought review of the deputy's determination, and on January 23, 2009, a hearing before an Appeal Tribunal took place. At the hearing, Farrell testified that she had a two-year history of employment as a substitute teacher for various school districts, including Allendale, for which she was paid on a per diem basis. She testified further that the school year had concluded on June 20, 2008 and was due to resume on September 2, 2008. On July 11, 2008, Farrell received a letter from the Allendale Board of Education asking her whether she was interested in working as a substitute during the following school year. Farrell answered the letter affirmatively, and on August 19, 2008, she was placed on the substitute teacher list by the Allendale Board of Education.

In a decision mailed on January 23, 2009, the Tribunal reversed the deputy, holding Farrell eligible for benefits from June 29, 2008 through August 16, 2008*fn1 because, during that period, she did not have a reasonable assurance of reemployment with an educational institution. However, the Tribunal found that she was ineligible for benefits from August 24, 2008 through September 6, 2008, pursuant to N.J.S.A. 43:21-4(g)(1), because in this period a reasonable assurance of reemployment existed. The matter of Farrell's liability for a refund was remanded to the Director for a recalculation.

Farrell appealed to the Board of Review on January 30, 2009. In that appeal, she stated:

I am sending you this letter requesting a modification of your "reasonable assurance" ineligibility dates.

The dates of ineligibility should be 8/24/08-9/1/08 (and not through 9/6/08) in that the school year began on 9/2/08 and therefore "reasonable assurance" ineligibility no longer applies after 9/1/08.

The Board of Review responded in a decision mailed on April 17, 2009. In that decision, the Board adopted the facts found by the Appeal Tribunal, but adding that "[o]ver the past two school years the claimant has been employed with the above-employer in the same capacity." The Board concluded:

We are satisfied that the claimant had reasonable assurance for the entire period in dispute. The claimant alleges that reasonable assurance does not exist prior to the Board of Education approving the substitute list because she can not begin working as a substitute teacher until they approve the list. We disagree. The pattern of recall during the previous year shows that the claimant had a reasonable prospect[] of recall for the following school ...

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